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Tuesday, September 13, 2005

The Nuclear Threat

My good friend (and new Harvard prawf) Jed Shugerman published this op-ed in the Boston Globe concerning confirmation hearings and the nuclear prospect.  Jed's intriguing proposal:

The filibuster is designed to keep debate open procedurally, but the threat of a filibuster should be used to foster debate substantively. The Senate Democrats should announce that they will filibuster a nominee who evades questions, answers questions inconsistently, or seems to be dishonest. If the nominee prevents debate from beginning, the senators should block it from ending.

But the flip side is that if the nominee candidly espouses views that seem extreme, the Senate Democrats should commit themselves to defeat the candidate only by an up-or-down vote. If they cannot muster 51 votes after an open hearing, then either the candidate is not so extreme or they need to campaign on these issues in the next election and win.

As something of a populist proceduralist, this idea appeals to me, for it properly recognizes that procedure is to be used in the service of substance.  It uses procedural rules to force us to debate substance--and then to take the substantive debate to the people if we lose.  The only trouble with this proposal is that it skirts certain political realities.  Democrats will use the filibuster if it serves their political interests, and not otherwise. 

Posted by Hillel Levin on September 13, 2005 at 09:30 AM in Hillel Levin | Permalink

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